|-----Original Message-----
|From: owner-ietf-mxcomp(_at_)mail(_dot_)imc(_dot_)org
[mailto:owner-ietf-|mxcomp(_at_)mail(_dot_)imc(_dot_)org] On Behalf Of Hector
Santos
|Sent: June 17, 2005 9:47 AM
|To: IETF-SMTP; IETF-MXCOMP
|Subject: FYI: Interesting CAM SPAM court case as it relates to
|2821 vs 2822
|
|
|CT. RULES FALSE CLAIMS IN EMAIL BODY FALLS OUTSIDE CAN-SPAM
|BNA's Electronic Commerce & Law Report reports that a
|federal court in Idaho has ruled that the CAN-SPAM Act does
|not supply a cause of action for false information included
|in the body of an allegedly unsolicited e-mail message. The
|court concluded that the anti-spam law only covers false
|information in email headers, not the text of the email.
|Case name is Internet Access Service Providers LLC v. Real
|Networks Inc. Article at
|<http://pubs.bna.com/ip/BNA/eip.nsf/is/a0b0y5c4d6>
|For a free trial to the source of this story, visit
|http://www.bna.com/prodcuts/ip/eplr.htm
Internet access services were given a private right of action
under section 7 of the Act:
|A provider of Internet access service adversely affected by a
|violation of section 5(a)(1), 5(b), or 5(d), or a pattern or
|practice that violates paragraph (2), (3), (4), or (5) of
|section 5(a), may bring a civil action in any district court of
|the United States with jurisdiction over the defendant.
My understanding is that in this case the Internet access service
did not plead the case properly. The plaintiff failed to claim:
|* It was adversely affected by a violation of section 5 (a) 1
|[False header information which includes the from address]; 5
|(b) [Aggravated Violations arising when commercial mail sent
|with false header information]; 5(d), or
|* It was adversely affected by a pattern or practice that
|violates paragraph (2) [Deceptive subject headings]; (3) [Not
|including return address or functioning mechanism to allow
|recipient to "opt-out"]; (4) [Sending commercial email after
|recipient "objects"] (5) [Not including 'identifier, opt-out and
|physical address' in commercial email].
As a result the case was dismissed upon the defendant's motion.
However, it is not correct to make the bald statement:
|"The court concluded that the anti-spam law only covers false
|information in email headers, not the text of the email."
The Act not only regulates the subject heading, but also mandates
certain inclusions in the text and regulates the text content
when determining the message primary purpose in accordance with
the rules published by the FTC.
As an aside, in my view, the Act is fundamentally flawed as it
imposes no obligations on volume control of UBCE.
On this point, it is interesting to see how the FTC's counsel
summarizes the FTC's consumer protection mission under the Act:
|Controlling the Assault of Non-Solicited Pornography and
|Marketing Act of 2003
<http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_co
ng_public_laws&docid=f:publ187.108.pdf>
|(CAN-SPAM Act) (15 U.S.C §§ 7701-7713)
|This Act establishes requirements for those who send unsolicited
|commercial email. The Act bans false or misleading header
|information and prohibits deceptive subject lines. It also
|requires that unsolicited commercial email provide recipients
|with a method for opting out of receiving such email and must be
|identified as an advertisement. In addition to enforcing the
|statute, the FTC must issue rules involving the required
|labeling of sexually explicit commercial email and the criteria
|for determining the primary purpose of a commercial email. The
|Act also instructs the Commission to report to Congress on the
|feasibility of a National Do-Not-E-Mail Registry, as well as
|requiring reports on the labeling of all unsolicited commercial
|email, the creation of a ?bounty system? to promote enforcement
|of the law, and the effectiveness and enforcement of the
|statute.
<http://www.ftc.gov/ogc/stat3.htm>
Of course this is a separate discussion, so I will stop here.
John Glube
Toronto, Canada